The Round-Up: Worboys Ruling Strikes a Blow to Parole Board Privacy, Criminal Bar to Strike over Legal Aid Cuts, and Did Vote Leave Breach Election Law?

2 April 2018 by Eleanor Leydon

Image Credit: Guardian

R (On the application of) DSD and NBV & Ors v The Parole Board of England and Wales & Ors & John Radford: in a landmark ruling, the High Court has quashed the Parole Board’s decision to release black cab driver and serial sex offender John Worboys, on grounds of irrationality. The Board acted irrationally in that it “should have undertaken further inquiry into the circumstances of his offending and, in particular, the extent to which the limited way in which he has described his offending may undermine his overall credibility and reliability” [201].

In particular the panel should have taken into account, and make inquiries about, the litany of further allegations and ‘80-plus potential victims’ referred to in the dossier, and the content of proceedings brought against the Metropolitan Police. Worboys was given great credit for being ‘open and honest with professionals’: whilst the panel were not being asked to make determinations as to the criminality of unproven allegations, the existence of unexplored allegations and their relevant evidence was critical to the assessment of his risk to the public.

Furthermore, an ultra vires challenge to Rule 25 of the Parole Board rules, which forbids information about proceedings from being publicised, was upheld. The open justice principle applied to Parole Board proceedings [117]. Secretary of State David Gauke has already released a statement asserting that he has “already decided to abolish Rule 25 and will do so as soon as possible after the Easter recess.” In addition, he intends to “bring forward proposals for Parole Board decisions to be challenged.”

The case was ground-breaking both in its challenge to Rule 25, and in representing the first challenge to a Parole Board decision to release a prisoner. As such it was also the first challenge brought by anyone other than a party to the proceedings (i.e. the prisoner or the Secretary of State). The victims’ standing was uncontested; however, the Mayor of London’s standing was ruled out. The Mayor’s concerns were legitimate, but distinguished from R v Foreign Secretary, ex parte Rees-Mogg as in that case, no one else would have been able to bring a claim: here, there were obviously better-placed challengers [110].

In The News

• Members of the Criminal Bar Association have voted on a 90% mandate to participate in strikes in protest against further cuts to legal aid and the untenable financial pressures facing the criminal bar. The action planned includes mass walkouts and co-ordinated refusals to accept legally aided cases. The move by the CBA, which follows the decision taken by chambers like Garden Court, was timed to begin yesterday (1^st April) in order to coincide with the coming into force of a new fees system for advocates. Chair of the CBA Angela Rafferty QC highlighted the already “appalling state of our system” and pointed, among other evidence, to the recent disclosure crisis. The Guardian reports that the MoJ has already suffered the deepest cuts of any Whitehall department since 2010 and closed more than 220 courts across England and Wales.
• The Vote Leave campaign may have committed criminal offences in breaching election law, according to an opinion produced by Matrix barristers and handed to the Electoral Commission. The opinion concluded that there is a ‘prima facie’ case that Vote Leave submitted inaccurate spending returns and colluded with the purportedly independent company BeLeave.
• New sentencing guidelines for terrorism offences were published on Wednesday, marking the first time that comprehensive guidelines have been introduced for the courts of England and Wales. The guidelines aim to tackle the changing nature of terrorist offences and to enable consistency in sentencing in an area which is relatively infrequently tried.

In The Courts

• Ioskevich v Government of the Russian Federation: a businessman’s appeal against extradition to Russia for alleged fraud failed on both Article 3 and Article 6 grounds. The Article 3 claim focused on Russian custody conditions as well as transit conditions, with the Article 6 ground alleging that the Russian Criminal Court system was financially and politically corrupt, and that powerful individuals such as the Complainant in these proceedings could exploit law enforcement for commercial purposes. Fatal to both grounds were that the Appellant’s approach amounted to an attack on the primary fact finding of the District Judge [33], who was found to have taken a nuanced approach to the facts and evidence. Furthermore, whilst on the former ground the Appellant had launched a general attack on the credibility of Russian assurances, supported by high-profile examples, Green J was persuaded that the specific context of extradition requests provided a ‘powerful incentive [for Russia] to honour assurances.’
• QSA & Ors, R (on the application of) v Secretary of State for the Home Department & Anor: The High Court has declared the provisions of Part V of the Police Act 1997 incompatible with Article 8 rights, ‘to the extent that they require disclosure of all previous convictions that are recorded on central records, on certificates under Part V of the Act where there is more than one conviction.’ Furthermore, the court declared the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 incompatible with Article 8 ‘to the extent that it excludes from the definition of “a person with a protected conviction” a person with more than one conviction.’ Neither declaration will take effect until the judgment upon any proposed appeal.
• Tikka v The Secretary of State for the Home Department: A Deputy Judge erred in determining that the removal of a Pakistan national from the UK, subsequent to the refusal of his leave to remain application, would not be a disproportionate interference with his Article 8 rights, as the resulting separation from his wife would be permanent rather than temporary. This was due to a combination of the finding that his wife could not reasonably be expected to relocate to Pakistan (where their marriage would not be recognised), and that contrary to the Deputy Judge’s analysis, the suitability requirements for re-entry were materially identical to those upon which the Appellant’s leave was curtailed [12]. As such, there was interference with Article 8, which in the Appellant’s case could not be justified by reference to legitimate aims of public interest [21].